West Seti Case and Prospect of Nepal’s Water Resources
Rabin Subedi,
rsubed@law.columbia.edu
Comparatively, this agreement is more worsen to Nepal because it ended the use of water rights of the uparian people of the Gandaki River. It means the water flowing in the various rivers that connected with Gandaki can not be used by the upstream people for their irrigation and other purposes including domestic use. For instance, the people of Chitwan can not make a cannel from the Trisuli river for irrigation and other purpose. Trisuli was cheaper for the drinking water of Kathmandu than the Melamchi. However, Trisuli can not be allowed to divert to Kathmandu as it reduces the water level of Gandaki river that will be against the treaty signed with India. Of course, Mahakali River is common to all, the agreement was signed by the Nepali Congress led government, and following the decision of the Supreme Court two third majority of the parliament had approved the agreement. Unfortunately, all the rivers have been signed with India during the political crisis in the country. Therefore, it would be enough room to presume that rivers have been made the bargaining of politics and power.
After the success of the Janaandolan Part two, to overcome the political crisis again , the joint government have concluded some other mega hydropower agreements. However, the West Seti hydropower was in under discussion and the agreement had been signed in 1997 with an Australian Company- Snowy Mountaineering Hydroelectric Corporation , it was not materialized giving various reasons. The government after 2006 finalized the west seti agreement again and provided license to the corporation. After that, government provided 402 MW Arun III for Satalaj Jalabidhut Nigam and 302 MW Upper Karnali to GMR. Both of them are Indian Companies. Besides these, there are number of hydropower project which are under discussion. For instance, Budhi Gandaki, Upper Tamakoshi, Bhotekoshi etc. Upper Tamakoshi is going to be made by the domestic capitals and local people are getting some portion of share in the company.
Unfortunately, the three separate companies have got authority to sell all most all power generated to India. Some few portion of power would be given to Nepal as a part of free of cost. And all these three power projects are provided for at least 30 years and companies have to return to Nepal government after the expiry of thirty years.
Notwithstanding, the mega power projects are going be me made in Nepal but it is not a matter of happiness to a Nepali because these are not for Nepal and even a Nepali could not ask the government to bye the electricity from this projects. Experts say that the electricity of these projects is cheaper than others. However, no Nepali could claim the energy; a small amount of power is given in the name of free energy. The agreed amount of power is 75 MW from West Seti, 21MW from Upper Karnali and 29MW Arun III. It is unreasonable that the policy makers and leaders of political parties do not realized that there is not access of electricity to more than 80 percent of the people of country and there is more than 20 hours power cut a week for the areas even where there is access of the electricity. They never think that electricity could be a means of development and we can use as an alternative to the petroleum products which has been most expensive day by day.
In August of 2006, a public interest litigation (PIL) was filed at the Supreme Court of Nepal by some locals and human rights activists seeking some national and local issues which are neglected by the West Seti project agreement. Furthermore, the agreement was signed against the Article 156 of the interim constitution that has laid down certain requirement for the sharing of natural resources categorizing long term effect and short term effect. After the West Seti PIL, PIL for Upper Karnali and PIL for Arun III were also lodged. All PILs have demand of national priority and water sovereignty.
Mainly, these agreements were challenged on three grounds; the first is rights of the people in regard to the water and river, which contain environmental, right to information and other social and cultural rights including compensation and rehabilitation. Second the national interest; that includes the water sovereignty and national sovereignty of county and the third and important ground was application of Article 156 of the Constitution as these all the agreement refer the power and water sharing between Nepal and India.
Rights of people: The West Seti project is going to displace more than 15 thousand people whose life has been part of this river over the history. These people must have the fist use of water and to make a decision over the use of the water and they must be equally participated for any plan or development that is going to occur with the water. They are the stakeholders by whom free and prior inform consent must be taken. However, the practice is completely different. National and international laws and mechanisms have clearly indicated the local people have first right over the natural resources. In the contrary, the companies shall have absolute rights over the water, no one can use it and no provision is mentioned in the agreements for the use of local people. At least three should be guarantee of rights to use of water for their basic need if they need. Indeed, the all three project should be able to establish people’s right over the water.
In addition to this, the local people have some social and economic rights. For instance, what would be the benefit sharing model for these people, how the money and what amount of money and in which title the money is disburse for the development of people? These agreements are silent. Also are they accessible to have employment opportunity in the project or not? In which post they can hold or they will only be the labour , the agreement is silent.
National Sovereignty and Water Sovereignty
We have very bad examples of water sharing in the history. In addition to the Kosi and G a n d a k , Mahakali was next unfortunate as discussed above. Nepal was supposed to get 50 percent electricity and 50 percent water from the Mahakali river, however no body knows when the electricity comes out. So far as the water is concerned, unfortunately Nepal is receiving only 3.5 percent whereas India has used 96.5 percent. Neither Nepal demands royalty with India for the 46.5 percent water nor Nepal does have any plan to utilize this water. Now the India has established prior use of water. It means even if Nepal wants with out permission of India the 46.5 percent water can not be used or no royalty can be claimed.
The West Seti has been another Mahakali. After the storage of water in the dam, according to the experts, the volume of water would be increased by 90-156 Cusec per second. Nepal has absolute rights over this water; however the agreement is completely silent. The increased volume of water will flow from more than 125 KM in Nepal after it releases from the dam. It could be beneficiary to the down stream people for irrigation and other purpose. Some so called export opined that it is not technically possible.
On the other hand, India has already made two cannels, Sarada Sahayak and Sarayu, for the use of this water. Nepali authorities even do not like to go in this fact or sometimes they become ignorant. They say that water is flowing everyday being useless. The crucial thing is it is not the question of regular water; it is the stored water in the dam which has contribution of more than 15 thousand people in the area, who are going to be displaced. A similar type of dispute was occurred between Canada and United States of America (USA) on the water sharing issues of Columbia River. However, Canada was only agreed to sign the agreement after USA became ready to pay royalty for the regulated water. Nepal could ask India for the price of this water. According to an Indian researcher, India is prepared even to pay the price in case Nepal asks, unfortunately Nepal government does not pay attention. Hence on the one hand these agreements have ended water rights of people of Nepal on the other hand these practices are challenging national sovereignty.
Constitutional Issues: Article 156
of the Constitution:
Article 156(1) states that the ratification of, accession to acceptance of or approval of treaties or agreements to which the State of Nepal or the Government of Nepal is to become a party shall be as determined by the law.
Sub- section (2) reads that laws to be made pursuant to clause (1) shall, inter alia, require that the ratification of, accession to acceptance of or approval of treaty or agreements on the following subjects be done by a two-third majority of the total number of members of the Legislature-parliament.
(a) Peace and friendship;
(b) Security and strategic alliance;
(c) The boundary of Nepal; and
(d)Natural resources and the distribution of their uses.
Provided that out of the treaties and agreements referred to in the sub-clauses (a) and (d), if any treaty or agreement is of ordinary nature and which does not affect the nation extensively, seriously or in the long term, the ratification of, accession to, acceptance of or approval of such a treaty or agreement may be done at a meeting of the Legislature-Parliament by a simple majority of the members present in the House.
West seti and other above mentioned projects falls under the category of 2 (d) as it is a sharing of natural resources in which there is clearly established sharing of water and electricity with India. Unfortunately, the court said that this is not an issue of sharing of natural resources. It seems that water is not natural resources for the Court. As the these rivers are given for 30 years and the water and electricity is distributed for both countries, it is really difficult that why court does not see it as a sharing between two countries. The West Seti project will 750-810 MW electricity by making a big dam. If one looks at the total power production data of the country, it is approximately 600 MW in the rainy season. However the agreement allows to the Company to sell more than 80 percent electricity to India. Exports have a say that the electricity generate by this project is cheaper than the other existing projects are generating. Since there would be a big dam and company will establish absolute right over the resources, how one can believe that these projects are not of long term effect in the country. Just imagine for a moment, in case the dam is destroyed like the Kosi embankment. Then how come to the court that this is not a project of long term effect and sharing of natural resources between two countries.
There is no doubt that the Supreme Court of Nepal has played a vital role for the institutionalization of democracy and rule of law in the Country. Especially for the protection and protection of fundamental rights, judicial review, women and dalit issues role of government issues and so on. However, in some of the decision, it seems that the Supreme Court is no so serious and does not look in properly. It seems that the Supreme Court is not serious for the issues of national concerned and sovereignty. As a matter of fact, the hearing was completed in December of 2007 and the decision came out in September of 2008, after the formation of government. It is also suspicion on the supreme court that why the decision came out lately and after the formation of new government. It gives some political color of the court’s decision.
Unfortunately, Upper Karnali and Arun III were behind the West Seti case. All are dismissed with the West Seti on the ground that there is not a sharing of natural resources between two countries. But the reality is different. As discussed above, more than 80 percent electricity is going to India and for west seti case water is going to India free of cost. Hence by overlooking on that serious issues, the Supreme Court has not only done a historical mistake but also has over looked on the sovereignty and right towater of the people of Nepal by violating various UN Resolution on Sovereignty Over the Natural Resources of People and Convention of Biological Diversity, 1992.
(Rabin Subedi is a Public Interest Law Fellow at Columbia University, New York.)
Source: Nepal Abroad weekly Published from Washington DC
September 27, 2008 (2065 Aswin 11) Year 3. No. 33
rsubed@law.columbia.edu
Comparatively, this agreement is more worsen to Nepal because it ended the use of water rights of the uparian people of the Gandaki River. It means the water flowing in the various rivers that connected with Gandaki can not be used by the upstream people for their irrigation and other purposes including domestic use. For instance, the people of Chitwan can not make a cannel from the Trisuli river for irrigation and other purpose. Trisuli was cheaper for the drinking water of Kathmandu than the Melamchi. However, Trisuli can not be allowed to divert to Kathmandu as it reduces the water level of Gandaki river that will be against the treaty signed with India. Of course, Mahakali River is common to all, the agreement was signed by the Nepali Congress led government, and following the decision of the Supreme Court two third majority of the parliament had approved the agreement. Unfortunately, all the rivers have been signed with India during the political crisis in the country. Therefore, it would be enough room to presume that rivers have been made the bargaining of politics and power.
After the success of the Janaandolan Part two, to overcome the political crisis again , the joint government have concluded some other mega hydropower agreements. However, the West Seti hydropower was in under discussion and the agreement had been signed in 1997 with an Australian Company- Snowy Mountaineering Hydroelectric Corporation , it was not materialized giving various reasons. The government after 2006 finalized the west seti agreement again and provided license to the corporation. After that, government provided 402 MW Arun III for Satalaj Jalabidhut Nigam and 302 MW Upper Karnali to GMR. Both of them are Indian Companies. Besides these, there are number of hydropower project which are under discussion. For instance, Budhi Gandaki, Upper Tamakoshi, Bhotekoshi etc. Upper Tamakoshi is going to be made by the domestic capitals and local people are getting some portion of share in the company.
Unfortunately, the three separate companies have got authority to sell all most all power generated to India. Some few portion of power would be given to Nepal as a part of free of cost. And all these three power projects are provided for at least 30 years and companies have to return to Nepal government after the expiry of thirty years.
Notwithstanding, the mega power projects are going be me made in Nepal but it is not a matter of happiness to a Nepali because these are not for Nepal and even a Nepali could not ask the government to bye the electricity from this projects. Experts say that the electricity of these projects is cheaper than others. However, no Nepali could claim the energy; a small amount of power is given in the name of free energy. The agreed amount of power is 75 MW from West Seti, 21MW from Upper Karnali and 29MW Arun III. It is unreasonable that the policy makers and leaders of political parties do not realized that there is not access of electricity to more than 80 percent of the people of country and there is more than 20 hours power cut a week for the areas even where there is access of the electricity. They never think that electricity could be a means of development and we can use as an alternative to the petroleum products which has been most expensive day by day.
In August of 2006, a public interest litigation (PIL) was filed at the Supreme Court of Nepal by some locals and human rights activists seeking some national and local issues which are neglected by the West Seti project agreement. Furthermore, the agreement was signed against the Article 156 of the interim constitution that has laid down certain requirement for the sharing of natural resources categorizing long term effect and short term effect. After the West Seti PIL, PIL for Upper Karnali and PIL for Arun III were also lodged. All PILs have demand of national priority and water sovereignty.
Mainly, these agreements were challenged on three grounds; the first is rights of the people in regard to the water and river, which contain environmental, right to information and other social and cultural rights including compensation and rehabilitation. Second the national interest; that includes the water sovereignty and national sovereignty of county and the third and important ground was application of Article 156 of the Constitution as these all the agreement refer the power and water sharing between Nepal and India.
Rights of people: The West Seti project is going to displace more than 15 thousand people whose life has been part of this river over the history. These people must have the fist use of water and to make a decision over the use of the water and they must be equally participated for any plan or development that is going to occur with the water. They are the stakeholders by whom free and prior inform consent must be taken. However, the practice is completely different. National and international laws and mechanisms have clearly indicated the local people have first right over the natural resources. In the contrary, the companies shall have absolute rights over the water, no one can use it and no provision is mentioned in the agreements for the use of local people. At least three should be guarantee of rights to use of water for their basic need if they need. Indeed, the all three project should be able to establish people’s right over the water.
In addition to this, the local people have some social and economic rights. For instance, what would be the benefit sharing model for these people, how the money and what amount of money and in which title the money is disburse for the development of people? These agreements are silent. Also are they accessible to have employment opportunity in the project or not? In which post they can hold or they will only be the labour , the agreement is silent.
National Sovereignty and Water Sovereignty
We have very bad examples of water sharing in the history. In addition to the Kosi and G a n d a k , Mahakali was next unfortunate as discussed above. Nepal was supposed to get 50 percent electricity and 50 percent water from the Mahakali river, however no body knows when the electricity comes out. So far as the water is concerned, unfortunately Nepal is receiving only 3.5 percent whereas India has used 96.5 percent. Neither Nepal demands royalty with India for the 46.5 percent water nor Nepal does have any plan to utilize this water. Now the India has established prior use of water. It means even if Nepal wants with out permission of India the 46.5 percent water can not be used or no royalty can be claimed.
The West Seti has been another Mahakali. After the storage of water in the dam, according to the experts, the volume of water would be increased by 90-156 Cusec per second. Nepal has absolute rights over this water; however the agreement is completely silent. The increased volume of water will flow from more than 125 KM in Nepal after it releases from the dam. It could be beneficiary to the down stream people for irrigation and other purpose. Some so called export opined that it is not technically possible.
On the other hand, India has already made two cannels, Sarada Sahayak and Sarayu, for the use of this water. Nepali authorities even do not like to go in this fact or sometimes they become ignorant. They say that water is flowing everyday being useless. The crucial thing is it is not the question of regular water; it is the stored water in the dam which has contribution of more than 15 thousand people in the area, who are going to be displaced. A similar type of dispute was occurred between Canada and United States of America (USA) on the water sharing issues of Columbia River. However, Canada was only agreed to sign the agreement after USA became ready to pay royalty for the regulated water. Nepal could ask India for the price of this water. According to an Indian researcher, India is prepared even to pay the price in case Nepal asks, unfortunately Nepal government does not pay attention. Hence on the one hand these agreements have ended water rights of people of Nepal on the other hand these practices are challenging national sovereignty.
Constitutional Issues: Article 156
of the Constitution:
Article 156(1) states that the ratification of, accession to acceptance of or approval of treaties or agreements to which the State of Nepal or the Government of Nepal is to become a party shall be as determined by the law.
Sub- section (2) reads that laws to be made pursuant to clause (1) shall, inter alia, require that the ratification of, accession to acceptance of or approval of treaty or agreements on the following subjects be done by a two-third majority of the total number of members of the Legislature-parliament.
(a) Peace and friendship;
(b) Security and strategic alliance;
(c) The boundary of Nepal; and
(d)Natural resources and the distribution of their uses.
Provided that out of the treaties and agreements referred to in the sub-clauses (a) and (d), if any treaty or agreement is of ordinary nature and which does not affect the nation extensively, seriously or in the long term, the ratification of, accession to, acceptance of or approval of such a treaty or agreement may be done at a meeting of the Legislature-Parliament by a simple majority of the members present in the House.
West seti and other above mentioned projects falls under the category of 2 (d) as it is a sharing of natural resources in which there is clearly established sharing of water and electricity with India. Unfortunately, the court said that this is not an issue of sharing of natural resources. It seems that water is not natural resources for the Court. As the these rivers are given for 30 years and the water and electricity is distributed for both countries, it is really difficult that why court does not see it as a sharing between two countries. The West Seti project will 750-810 MW electricity by making a big dam. If one looks at the total power production data of the country, it is approximately 600 MW in the rainy season. However the agreement allows to the Company to sell more than 80 percent electricity to India. Exports have a say that the electricity generate by this project is cheaper than the other existing projects are generating. Since there would be a big dam and company will establish absolute right over the resources, how one can believe that these projects are not of long term effect in the country. Just imagine for a moment, in case the dam is destroyed like the Kosi embankment. Then how come to the court that this is not a project of long term effect and sharing of natural resources between two countries.
There is no doubt that the Supreme Court of Nepal has played a vital role for the institutionalization of democracy and rule of law in the Country. Especially for the protection and protection of fundamental rights, judicial review, women and dalit issues role of government issues and so on. However, in some of the decision, it seems that the Supreme Court is no so serious and does not look in properly. It seems that the Supreme Court is not serious for the issues of national concerned and sovereignty. As a matter of fact, the hearing was completed in December of 2007 and the decision came out in September of 2008, after the formation of government. It is also suspicion on the supreme court that why the decision came out lately and after the formation of new government. It gives some political color of the court’s decision.
Unfortunately, Upper Karnali and Arun III were behind the West Seti case. All are dismissed with the West Seti on the ground that there is not a sharing of natural resources between two countries. But the reality is different. As discussed above, more than 80 percent electricity is going to India and for west seti case water is going to India free of cost. Hence by overlooking on that serious issues, the Supreme Court has not only done a historical mistake but also has over looked on the sovereignty and right towater of the people of Nepal by violating various UN Resolution on Sovereignty Over the Natural Resources of People and Convention of Biological Diversity, 1992.
(Rabin Subedi is a Public Interest Law Fellow at Columbia University, New York.)
Source: Nepal Abroad weekly Published from Washington DC
September 27, 2008 (2065 Aswin 11) Year 3. No. 33
